Tag: Undue Influence

In Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807 [Tataryn] the Supreme Court of Canada clarified the law of wills variations and held that a will may be varied under the WVA where there are legal or moral obligations to provide maintenance and support for a spouse or child.

In Tataryn, the testator husband and his wife had been married 43 years and, through their joint efforts, had amassed a home (in the testator’s name), a rental property and bank funds. There were two adult sons, J. and E. The testator disliked J. (for reasons that were not apparent). He feared that if he left his estate to his wife, she would pass it on to J. By his will, the testator gave E. full title to the rental property and created a discretionary trust dealing with the residue of the estate, including the home. Under the trust the wife was the beneficiary of a life interest in the home. E. was the trustee and residuary beneficiary taking full title to the home upon the wife’s death. J. received nothing under the will or the trust it created.

The trial judge in Tataryn revoked the bequest of the rental property to E. and granted the

wife a life interest in that property; directed that J. and E. each receive an immediate gift of $10,000 out of the residue of the estate. The trial judge also directed that when the wife died the residue of the estate, including the home and the rental property, was to be divided one-third to J. and two-thirds to E.

The wife’s appeal was dismissed by the British Columbia Court of Appeal: Tataryn v.

Tataryn Estate (1992), 74 B.C.L.R. (2d) 211 (C.A.).

The wife successfully appealed to the Supreme Court of Canada.

The court granted the sons an immediate gift of $10,000 each. The wife was granted title to the family home, a life interest in the rental property and the entire residue of the estate after payment of the immediate gifts to the sons. Upon the death of the wife, the sons were entitled to the rental property (one-third to J.; two-thirds to E.)

In Tataryn, McLachlin J. (as she then was) discussed the twin interests protected by the

WVA. McLachlin J. described the “main aim” as the “adequate, just and equitable provision for the spouses and children of testators” and that at the very least, that means preventing spouses and children from becoming a charge on the state (Tataryn at 815). However, said McLachlin J., it is equally

reasonable to suppose that the legislators were concerned with wives and children receiving a just and equitable share of the family wealth even in the absence of demonstrated need.

The second interest protected by the WVA is testamentary autonomy:

The Act did not remove the right of the legal owner of property to dispose of it upon death. Rather, it limited that right. The absolute testamentary autonomy of the 19th century was required to yield to the interests of spouses and children to the extent, and only to the extent, that this was necessary to provide the latter with what was “adequate, just and equitable in the circumstances” {Tataryn at 815).

[Emphasis in original]

The court went on to note that what is “adequate, just and equitable” must be judged by contemporary standards. Current standards require that both legal and moral societal norms be considered:

If the phrase “adequate, just and equitable” is viewed in light of current societal norms, much of the uncertainly disappears. Furthermore, two sorts of norms are available and both must be addressed. The first are the obligations which the law would impose on a person during his or her life were the question of provision for the claimant to arise. These might be described as legal obligations. The second type of norms are found in society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards. These might be called moral obligations, following the language traditionally used by the courts. Together, these two norms provide a guide to what is “adequate, just and equitable” in the circumstances of the case (Tataryn at 820-821).

With respect to variation on moral grounds, the court in Tataryn observed that dependent adult children are entitled to such consideration as the size of the estate and the testator’s other obligations may allow. With respect to independent adult children, the court said:

While the moral claim of independent adult children may be more tenuous, a large body of case law exists suggesting that, if the size of the estate permits and in the absence of circumstances which negate the existence of such an obligation, some provision for such children should be made… (Tataryn at 822-823) (emphasis added).

How are conflicting claims to be balanced against each other? Where the estate permits, all should be met. Where priorities must be considered, it seems to me that claims which would have been recognized during the testator’s life – i.e., claims based upon not only moral obligation but legal obligations – should generally take precedence over moral claims. As between moral claims, some may be stronger than others. It falls to the court

to weigh the strength of each claim and assign to each its proper priority……. Any moral

duty should be assessed in the light of the deceased’s legitimate concerns which, where the assets of the estate permit, may go beyond providing for the surviving spouse and children (Tataryn at 823) (emphasis added).

I add this. In many cases, there will be a number of ways of dividing the assets which are adequate, just and equitable. In other words, there will be a wide range of options, any of which might be considered appropriate in the circumstances. Provided that the testator has chosen an option within this range, the will should not be disturbed. Only where the testator has chosen an option which falls below his or her obligations as defined by reference to legal and moral norms, should the court make an order which achieves the justice the testator failed to achieve. In the absence of other evidence a will should be seen as reflecting the means chosen by the testator to meet his legitimate concerns and provide for an ordered administration and distribution of his estate in the best interests of the persons and institutions closest to him. It is the exercise by the testator of his freedom to dispose of his property and is to be interfered with not lightly but only in so far as the statute requires. (Tataryn at 824) (emphasis added).

McLachlin J. concluded that the testator’s only legal obligation was to his wife. Further, the

wife had the highest moral claim on the testator. Both claims were very strong.

By contrast, the claims of the sons were not strong:

The remaining moral claims on the testator are those of the two grown and independent sons. The testator gave nothing to one, everything to the other, subject to his provision of money to Mrs. Tataryn. The moral claims of the sons cannot be put very high. There is no evidence that either contributed much to the estate (Tataryn at 825).

Pre-Nuptial Agreement

Martinson v Anniko 2009 BCSC 14 is illustrative of where a marriage agreement  is ultimately  “fair”, it will be held to bar a spouse’s Wills Variation claim brought after the death of a spouse.  The Court was also critical of the steps taken by the surviving spouse in secretly severing the joint tenancy home, that she would ahve inherited had she not severed

The Plaintiff stood to inherit the entire matrimonial home but severed joint tenancy and gifted other monies received from the Testator to her daughters. These were her unilateral decisions and the court found there was no inequity on the part of the Testator.  

 The Testator and the Plaintiff marriedfor the second time  later in life.

During the period beginning immediately prior to their marriage and until the Testator’s death, the two signed four agreements regarding their respective property:

1. a pre-nuptial agreement in 1985 stipulating that the property each brought to the marriage would remain separate;
2. an amendment signed in 1986 stipulating that the 1985 agreement would have the force of law under s. 48 of the Family Relations Act (“FRA”), and would govern the ownership of respective assets in the event of divorce, death, or separation. The amendment also provided that the agreement as amended released both from any claim made by the other under either the Estate Administration Act (“EAA”) or the Wills Variation Act (“WVA”);
3. a second amendment to the original 1985 agreement signed in 1988 stating that the couple’s residence in Victoria, BC was purchased with the sole assets of the Testator and was held in joint tenancy as a matrimonial home. The amendment also stated that the Plaintiff held her interest in the home in trust for the Testator, who was the sole beneficial owner. Finally, it provided that if the Testator predeceased the Plaintiff, the Plaintiff would hold the entire property in trust and would sell the property and pay the proceeds of sale to the Testator’s family;
4. a third and final amendment to the original 1985 agreement made in 1995 that terminated the trust arrangement created in the second amendment and declared that the Plaintiff and the Testator held the matrimonial home as joint tenants.

The Testator made three Wills between 1996 and 2005, each providing something for the Plaintiff and her children from a prior marriage in recognition of s. 2 of the WVA.

The Testator’s final Will left nothing for the Plaintiff or her children from a prior marriage, but did provide a $50,000 bequest to the Plaintiff’s granddaughter.

The entire residue of the Testator’s estate went to his nephew, the Defendant.

The Testator noted in the Will that the Plaintiff would be provided with the matrimonial home, some jointly held investments, and would also receive some inter vivos gifts.

However, the Testator was unaware that the Plaintiff had already severed the joint tenancy on the matrimonial home and registered her half interest jointly in her and her children’s names. The Testator died and the Will, leaving the entire residue of his estate to his nephew.

The Plaintiff applied to vary the will but her claim was  dismissed.

The Court held that the Testator fulfilled his legal and moral obligations to the Plaintiff.

Marital agreements have the force of law under Section 65 of the Family Relations Act

The act also allowed  for the variation of marriage agreements where they were inequitable, but the court found no such inequity in the present case.

The successive Wills executed by the Testator between 1996 and 2005 made decreasing provision for the Plaintiff, with justifications citing the increase of value of the marital home, inter vivos gifts made by the Testator, and the growth in jointly-held investments.

Austin v Les 2006 BCSC 2100 is a wills variation case where disinherited.com was the plaintiff’s counsel representing a 62-year-old daughter of the deceased person who was essentially given away to be raised by others.

Marg Austin was born at a time when it was socially unacceptable for a mother to be unwed.

The deceased went on to marry and live happily ever after pretending that she did not have an out of wedlock child.

The deceased and her husband adopted two girls and ultimately the deceased left her two girls to share equally in her substantial estate.

She left her abandoned daughter Marg the sum of $100.

disinherited.com was successful in obtaining an equal one third of the estate for Marg.

disinherited.com was recently contacted by a 77-year-old man whose mother recently passed away at about age 92.

Her obituary read that she left three children and referred to the  client as her brother.

The deceased had lived all her life under the façade that she did not have an out of wedlock child prior to her marriage.

When he was 15 he found out that his sister was in fact his mother.

The client has a birth certificate with the deceased’s name on it indicating that she is his mother, and this was acknowledged during her lifetime privately and amongst her three natural children, but the hurtful façade continued.

It reminded me that movie actor Jack Nicholson also learned that his sister was in fact his mother when he was a teenager.

Marg’s story was reported by the Vancouver Sun in a full page article on August 15,2009, section A10.

Wills Bequest Lapses Into Residue

Our previous blog related to the wills interpretation issues related to the Eberwein Estate 2012 BCSC 250.

One of the issues involved in the interpretation of this will related to a charitable gift to an organization called Aid to Animals In Distress.

The deceased had previously given small donations to this charity in 1998, 2000 and 2001 respectively.

The charity operated a cat shelter and the evidence was clear that the deceased clearly loved cats.

The deceased left an estate of nearly $10 million, and as previously blogged, left no children or spouse.

The problem however is that the deceased died in 2010 and this particular charity ceased to exist in 2007, prior to the making of the will in February 2010, one month before the death of the testatrix.

The legal question involved was whether or not the bequests to this charity, a cat shelter, was evidence of the general charitable intention such that, through the application of the cy-pres doctrine, another charity in the same field could be benefited?

Or alternatively, if there was no general charitable intent, did the gift lapse and fall into the residue of the estate.

The general principles involved are that where it is impossible to carry out a gift, but it can be shown that the donor or at a general charitable intent, the court has inherent jurisdiction to make an order for a cy-pres scheme, that is the property be applied in a way as close as possible to that scheme set out by the testatrix.

The court reviewed case law in favor of the proposition that if a will maker showed an intention to make a gift to a particular institution, but that institution is no longer in existence at the time of the testator’s death, the gift will fail.

The court also reviewed case law where the will maker named one charity in a will as the beneficiary the residue of the estate, where the court was able to construe a general intention despite the wrong naming of the charity that never even existed

In this particular case however, the will maker made nine separate bequests to nine identified charities covering a range of subject matters of which the named aid to animals in distress was only one.

It was not a misnomer but was a real charity to which she had donated in the past.

The court accordingly concluded that the deceased did not have a general charitable intent with respect to that gift, and accordingly that gift lapsed and form part of the residue of the estate

Interpretation and Construction of Wills

The Estate of Gertrud Eberwein 2012 BCSC 250 is an excellent example of a wealthy person dying with a poorly drafted will that needs interpretation and construction by the court.

The deceased died in 2010 at age 85 years.

She did not have any children or spouse and left  an estate of $10 million.

Her will was to be distributed amongst family and friends scattered throughout the world as well as various charities, one of which was no longer in existence.

There were various issues of interpretation as many clauses in the will were either poorly drafted, vague, or the beneficiary could not be located or ceased to exist.

I will deal with how the court dealt with the charitable bequest issue in a subsequent blog.

The case gives a helpful summary of the various rules of interpretation and construction of wills relating to poorly drafted wills:

The goal in interpreting a will is to give effect to the testamentary intentions of the testatrix for the distribution of her estate:  Rondel v. Robinson Estate, 2011 ONCA 493, 337 D.L.R. (4th) 193, at para. 23.

The Ontario Superior Court of Justice in Re Kaptyn Estate, 2010 ONSC 4293, 102 O.R. (3d) 1, (“Kaptyn Estate”) helpfully summarized many of the principles relating to the interpretation and construction of wills:

a)              The court will seek to determine the actual intention of the testator, as opposed to an objective intent presumed by law (para. 31).

b)              Other cases interpreting words in other wills are of little assistance since the task is to interpret this testator’s subjective intentions (para. 32).

c)               There is a distinction between interpretation and construction of a will.  Interpretation seeks to determine the testator’s subjective intentions from the words used in light of the surrounding circumstances.  Rules of construction are a default process turned to by the courts when the testator’s actual intentions cannot be ascertained (para 34).

d)              The starting position of the court is the “armchair rule”, where the court puts itself in the place of the testator at the time when he made his will.  This allows consideration of some extrinsic evidence of the surrounding circumstances known to the testator as might bear on his intentions (para. 35).

e)              The authorities distinguish between admissible and inadmissible extrinsic evidence in interpreting a will (paras. 35-38):

i.                 “indirect extrinsic evidence” of the surrounding circumstances known to the testator at the time he made the will is generally admissible.  This includes evidence of such things such as the testator’s occupation and property and financial situation; his relationships with family and friends; and natural objects of his grant;

ii.                “direct extrinsic evidence” of the testator’s intentions is generally inadmissible.  This is so as to preserve the will itself as the primary evidence, and to avoid the situation of an “oral will” displacing the written form.  However, there is an exception where there is an “equivocation”, namely, where the will describes two or more persons or things equally well.  In that situation, the law will allow evidence of the testator’s intention.  Examples of inadmissible direct evidence are such things as notes or statements of the testator as to his intention, or instructions he gave his lawyer in preparing the will;

f)                the court will interpret the will viewed as a whole (para. 138);

g)              the court will prefer an interpretation that leads to a testacy, not an intestacy (para. 139); and,

h)              the court will not hesitate to correct obvious mistakes, including deleting or inserting words, where to do so accords with the testator’s intentions, or where not to do so would lead to an absurd result (para 140).

[18]         The proper approach of the court is to consider the language of the will in light of the surrounding circumstances together, rather than one first and then the other: Abram Estate v. Shankoff, 2007 BCSC 1368 at para. 77.

Construction of Wills

Re Lang 2011 BCSC 972 involved a court application for an interpretation of the commonly used words “grandchildren” and “great grandchildren” that were used in the testator’s will.

The testator divided the residue of her estate to her grandchildren and great-grandchildren. At the time of her death there were two grandchildren and one great

grandchild through her two adopted children.

The testator also had 10 grandchildren and 17 great-grandchildren through her two stepchildren.

The executor brought a petition for an interpretation of the testator’s will in regards to whether grandchildren and great-grandchildren included step relatives.

The court ordered that the words grandchildren and great-grandchildren in the testator’s will were interpreted as meaning legal descendents only, as that was

consistent with the most natural and ordinary meaning of the testator’s words.

There was no convincing reason to justify a departure from the legal presumption in favor of legal descendents.

There was minimal information about the testator’s relationship with her  step grandchildren and step great grandchildren.

The testator’s handwritten notes listing legal descendents me contemporaneously with the execution of her will, was most significant during those notes were

in harmony with the natural language of the will.

Nothing in the solicitors notes suggested that the testator intended to include her 27 other grandchildren and great grandchildren as residual beneficiaries.

The testator’s feeling of love and affection for her step relatives was not inconsistent with her leaving residue to only her legal descendents.

The court made the following comments:

Finch J. as he then was, said at para. 7 of Widdess Estate v. Cunningham, [1984] B.C.J. No. 3052 (S.C.):

In construing the language of a will the court looks to the meaning which the words used would have had for the Testator. The court places itself, so far as is possible, in the position of the Testator when he made the will, and construes it in light of the facts and circumstances then known to him. The Testator’s intention is to be gathered from a construction of the will, as a whole, and not solely from words used in that part of the will said to be unclear or ambiguous. And, the will is taken to speak as of the date immediately before the Testator’s death.

See also, In the Matter of the Estate of Robert Selkirk Wood, 2010 BCSC 792, para. 12.

[15]         Surrounding circumstances cannot, however, add to or contradict the plain meaning of the will: Hickey Estate v. Greig et al (1987), 27 E.T.R. 17 [Hickey], at 22.

[16]         The will is the primary evidence of the testator’s intent. The court will not give effect to other evidenced intent in a way that overrides what the testator has expressed in the probated will:  Jensen Estate (Re) (1990), 37 ETR 137, at 140.

[17]         The judge’s duty is to decide what a particular testator intended in their individual circumstances. They should not to colour their interpretation of that intent based on what another court has found another testator, in other circumstances, intended by words they used: Hickey, page 23. It is noteworthy here though, that the court in Hickey thought interpreting the will in a way that would see the provision benefiting 8 grandchildren instead of 7 was not an addition to or variation of the will. In the case at bar, one of the two possible interpretations sees 3 residual beneficiaries, the other interpretation 30.

[18]         A judge can consider the testator’s “intimacy” with the potential beneficiaries: Re Lupton (1964), 44 D.L.R., (2d) 535, para. 40.

Production of Drafting Lawyer’s Will File

It is very common in estate litigation for the party attacking a will to want production of the drafting lawyer’s will file relating to the taking of instructions, preparation of, and execution of the deceased’s last will.

As a general statement of law, any communications between a lawyer and his or her client(s) are “privileged” and cannot be disclosed, even after death by the personal representative of the deceased.

There is a significant exception to that general rule in estate litigation that relates to the question of the actual validity of a will.

The law relating to solicitor/client privilege was reviewed in Fawcett Estate v Fawcett Estate (1998) BCJ 629, which stated inter alia:

14a    a) Once the lawyer client relationship arises, the privilege becomes permanent, unless the client waives it (Descoteaux v. Mierzwmski, [1982] 1 S.C.R.

860) and a solicitor’s duty to claim the privilege    / applies to former or deceased clients, subject to the exception that on death, the deceased’s instructions

concerning a will, which were privileged during his or her lifetime may be disclosed.

14b    b) By extension, the exception for wills cases permits posthumous disclosure of the settlors’

instructions concerning the creation of an inter vivos trust containing life and remainder interests

(Geffen v. Goodman Estate [1991] 2 S.C,R, 353                                                                              

14c    c) Legal professional privilege, or solicitor/client privilege, can be waived and that privilege

belongs to the client, so the client is the party who can waive the privilege. Until the client waives the

privilege, the lawyer owes a duty to assert it on the client’s behalf (Bell v. Smith, [1968] S.C.R. 664

(Ont).         

14d d) With respect to waiver of privilege, although the privilege continues after the client’s death, an executor may waive it on behalf of a deceased client (Goodman v. Geffen, [1991] 5 W.W.R. 389 at 409-414 (S.C.C.).

14e e) the prerequisites of a valid waiver are that the client must know of the privilege and the right to
claim it, and intend to relinquish it, and appreciate the consequences of doing so.

14f    f) Where the purpose for seeking disclosure of the confidential communications between lawyer and client was for the purpose of attempting to defeat the testator’s true intentions, as opposed to determining the true intentions of the testator, then the application (for production of the solicitor’s file) will be dismissed (Gordon v. Gilroy, [1994] B.C.J. No. 1927 (B.C.S.C.). 

disinherited.com added the emphasis to 14f and points out that it is this line of case law, following the Gordon v Gilroy case, that prevents a lawyer from successfully getting a court order for the production of the drafting lawyer’s file in a wills variation action, where the claimant is not attacking the actual validity of the will,and is simply looking for reasoning in the lawyers file that might assist the claimant in defeating the testator’s intentions by varying the will in his or her favour.

The courts have stated that the testator’s intention re the will is obvious and is as stated in the will itself.

It is only where there is a claim attacking the validity of the will, such as for lack of capacity or undue influence, that the courts will order production of the drafting lawyers file. Otherwise, the file is provileged and non compellable.